§ 1730. | §§ 8, | § 1731. | § 1; | § 1731A. | § 15; | § 1731B. | § 1; | § 1732. | § 12; | § 1733. | § 13; | § 1734. | § 14; | § 1735. | § 1736. | § 1; | § 1737. | § 1.) | § 1738. | § 1739.
§ 1730. Duty to report unprofessional conduct and inability to practice
medicine.
(a) Every person to whom a certificate to practice medicine is issued has a
duty to report to the Board if that person is treating professionally another
person who possesses a certificate to practice medicine for a condition
defined in § 1731(c) of this title, if, in the reporting person's opinion, the
person being treated may be unable to practice medicine with reasonable skill
or safety. The reporting person shall provide the Board with a written report
which includes the name and address of the person being treated, the exact
condition being treated, and the reporting person's opinion of whether or not
action should be taken under § 1731 of this title. A person reporting to the
Board or testifying in any proceeding as a result of making a report pursuant
to this section is immune from claim, suit, liability, damages, or any other
recourse, civil or criminal, so long as the person acted in good faith and
without gross or wanton negligence; good faith being presumed until proven
otherwise, and gross or wanton negligence required to be shown by the
complainant.
(b) Every person to whom a certificate to practice medicine is issued has a
duty to report to the Board within 30 days any change in hospital privileges
that would require a National Practitioner Data Bank (NPDB) report or a
Healthcare Integrity and Protection Data Bank (HIPDB) report by a hospital and
any disciplinary action taken by a medical society against that person.
(c) Every person to whom a certificate to practice medicine is issued has a
duty to report to the Board, within 60 days, all information concerning
medical malpractice claims settled or adjudicated to final judgment, as
provided in Chapter 68 of Title 18, and, within 30 days, all information
required to be reported under § 1731A(f) of this title.
(60 Del. Laws, c. 462, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102,
§§ 8, 9; 75 Del. Laws, c. 141, § 1.)
§ 1731. Unprofessional conduct and inability to practice medicine.
(a) A person to whom a certificate to practice medicine in this State has been
issued may be disciplined by the Board for unprofessional conduct, as defined
in subsection (b) of this section, by means of levying a fine, or by the
restriction, suspension, or revocation, either permanent or temporary, of that
person's certificate to practice medicine, or by other appropriate action,
which may include a requirement that a person who is disciplined must complete
specified continuing education courses.
(b) "Unprofessional conduct" includes but is not limited to any of the
following acts or omissions:
(1) The use of any false, fraudulent, or forged statement or document or the
use of any fraudulent, deceitful, dishonest, or unethical practice in
connection with a certification, registration, or licensing requirement of
this chapter, or in connection with the practice of medicine or other
profession or occupation regulated under this chapter;
(2) Conviction of or admission under oath to having committed a crime
substantially related to the practice of medicine;
(3) Any dishonorable, unethical, or other conduct likely to deceive, defraud,
or harm the public;
(4) The practice of medicine or other profession or occupation regulated under
this chapter under a false or assumed name;
(5) The practice of medicine or other profession or occupation regulated under
this chapter without a certificate or other authorizing document or renewal
of such document, unless otherwise authorized by this chapter;
(6) The use, distribution, or issuance of a prescription for a dangerous or
narcotic drug, other than for therapeutic or diagnostic purposes;
(7) Advertising of the practice of medicine or other profession or occupation
regulated under this chapter in an unethical or unprofessional manner;
(8) Solicitation or acceptance of a fee from a patient or other person by
fraudulent representation that a manifestly incurable condition, as determined
with reasonable medical certainty, can be permanently cured;
(9) Knowing or intentional performance of an act which, unless authorized by
this chapter, assists an unauthorized person to practice medicine or other
profession or occupation regulated under this chapter;
(10) The failure to provide adequate supervision to an individual working
under the supervision of a person who is certified and registered to practice
medicine;
(11) Misconduct, incompetence, or gross negligence in the practice of medicine
or other profession or occupation regulated under this chapter;
(12) Wilful violation of the confidential relationship with or confidential
communications of a patient;
(13) Wilful failure to report to the Board as required by § 1730(a) of this
title;
(14) Wilful failure to report to the Board as required by § 1730(b) of this
title;
(15) Wilful failure to report to the Board as required by § 1730(c) of this
title;
(16) Unjustified failure upon request to divulge information relevant to the
authorization or competence of a person to practice medicine or other
profession or occupation regulated under this chapter to the Board, to any
committee thereof, to the Executive Director, or to anyone designated by the
Executive Director to request such information;
(17) The violation of a provision of this chapter or the violation of an order
or regulation of the Board related to medical procedures or to the procedures
of other professions or occupations regulated under this chapter, the
violation of which more probably than not will harm or injure the public or an
individual;
(18) Charging a grossly exorbitant fee for professional or occupational
services rendered;
(19) Suspension or revocation of a certificate to practice medicine or of the
authorizing document to practice another profession or occupation regulated
under this chapter, or other disciplinary action taken by the regulatory
authority in another state or territory. In making its determination, the
Board may rely upon decisions made by the appropriate authorities in other
states and may not permit a collateral attack on those decisions;
(20) Signing the death certificate of a person prior to the actual time of
death of the person;
(21) A violation of § 1764A of this title.
(c) A certificate to practice medicine or an authorizing document to practice
another profession or occupation regulated under this chapter is subject to
restriction, suspension, or revocation, either temporarily or permanently, in
case of the inability of the holder to practice medicine or other profession
or occupation with reasonable skill or safety to patients by reason of 1 or
more of the following:
(1) Mental illness or mental incompetence;
(2) Physical illness, including, but not limited to, deterioration through the
aging process or loss of motor skill;
(3) Excessive use or abuse of drugs, including alcohol.
(d) The Board may establish, by class and not by individual, requirements for
continuing education and/or reexamination as a condition for renewal of
registration and for recertification to practice medicine or other profession
or occupation regulated under this chapter, or as a condition to continue to
practice medicine or other profession or occupation regulated under this
chapter after disciplinary sanctions are imposed or after inability to
practice with reasonable skill or safety to patients has been determined.
(e) A person who files a complaint with the Board or any of its members, the
Executive Director, or the Division, or who provides information to the Board
or any of its members, the Executive Director, or the Division regarding a
complaint, or who testifies as a witness at a hearing before the Board or any
of its hearing panels or committees concerning unprofessional conduct by a
person certified to practice medicine or other profession or occupation
regulated under this chapter in this State or concerning the inability of a
person certified to practice medicine or other profession or occupation
regulated under this chapter for the reasons set forth in subsection (c) of
this section, may not be held liable in any cause of action arising out of the
filing of the complaint, the providing of information, or the giving of
testimony, provided that the person does so in good faith and without gross or
wanton negligence.
(f) The provisions of this section apply to any person to whom a certificate,
license, or other authorizing document to practice a profession or occupation
has been issued pursuant to this chapter.
(60 Del. Laws, c. 462, § 1; 62 Del. Laws, c. 90, s. 3; 63 Del. Laws, c. 252,
§ 1; 64 Del. Laws, c. 477, § 4; 67 Del. Laws, c. 226, §§ 10, 11; 70 Del. Laws,
c. 186, § 1; 71 Del. Laws, c. 102, §§ 12-14; 74 Del. Laws, c. 213, § 1; 74
Del. Laws, c. 262, § 30; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 161, § 3.)
(a) Any person may report to the Board, in writing, information that the
reporting person reasonably believes indicates that a person certified and
registered to practice medicine in this State is or may be guilty of
unprofessional conduct or may be unable to practice medicine with reasonable
skill or safety to patients by reason of mental illness or mental
incompetence; physical illness, including deterioration through the aging
process or loss of motor skill; or excessive use or abuse of drugs, including
alcohol. The following have an affirmative duty to report, and must report,
such information to the Board in writing within 30 days of becoming aware of
the information:
(1) All persons certified to practice medicine under this chapter;
(2) All certified, registered, or licensed healthcare providers;
(3) The Medical Society of Delaware;
(4) All healthcare institutions in the State;
(5) All State agencies;
(6) All law enforcement agencies in the State.
(b) If a person certified to practice medicine in this State voluntarily
resigns from the staff of a healthcare institution, or voluntarily limits that
person's own staff privileges at a healthcare institution, or fails to
reapply for hospital or staff privileges at a healthcare institution, the
healthcare institution and the person shall promptly report in writing such
conduct to the Board if the conduct occurs while the person is under formal or
informal investigation by the institution or a committee thereof for any
reason related to possible unprofessional conduct or possible inability to
practice medicine with reasonable skill or safety to patients by reason of
mental illness or mental incompetence; physical illness; or excessive use or
abuse of drugs, pursuant to § 1731 of this title.
(c) Upon receiving a report pursuant to subsection (a) or (b) of this section,
or on its own motion, the Board shall investigate any evidence which appears
to show that the person reported is or may be guilty of unprofessional conduct
or may be unable to practice medicine with reasonable skill or safety to
patients by reason of mental illness or mental incompetence; physical illness;
or excessive use or abuse of drugs, pursuant to § 1731 of this title.
(d) When an investigation is necessary pursuant to subsection (c) of this
section, the Executive Director, with the approval of the assisting Board
members who must be or must include a physician and a public member when the
investigation relates to the quality of medical care provided by a physician
or to the competency of a physician to engage safely in the practice of
medicine, has the authority to inquire from any organization which undertakes
physician peer review or physician quality assurance evaluations whether or
not there has been any peer review, quality assurance, or similar process
instituted involving the physician under investigation that has resulted in
any adverse action. If adverse action resulted, the Executive Director may, by
subpoena, compel the production of a list of the medical records reviewed
during the peer review process, a list of the quality assurance indicators,
and/or a list of other issues which were the basis for the peer review,
quality assurance, or similar process. The lists produced must identify each
item with a unique medical identifier to replace the patient's name and
specific identifying information. If necessary, after receiving the lists the
Executive Director may, by subpoena, compel the production of the medical
records relevant to the adverse action. However, the individual, hospital,
organization, or institution shall remove the patient's name and specific
identifying information from the records prior to complying with the subpoena.
If, after having reviewed the records produced, an assisting physician Board
member and an assisting public Board member consider it necessary, the
Executive Director may, by subpoena, compel the production of the patient's
name. The Board shall take reasonable steps to protect the identity of the
patient in so far as such protection does not, in the opinion of the Board,
adversely affect the Board's ability to protect the public interest. An
individual, hospital, organization, or institution that furnishes information
to the Board pursuant to a subpoena issued pursuant to this subchapter with
respect to any patient is not solely by reason of furnishing the information
liable in damages to any person or subject to any other recourse, civil or
criminal.
(e) The Board shall promptly acknowledge all reports received under this
section. Individuals or entities reporting under this section must be promptly
informed of the Board's final disposition of the reported matters.
(f) Malpractice insurance carriers and insured persons certified to practice
medicine in this State shall file with the Board a report of each final
judgment, settlement, or award against the insured persons. A person not
covered by a malpractice insurance carrier shall also file a report with the
Board. A report required to be filed under this subsection must be made to the
Board within 30 days of a final judgment, settlement, or award.
(g) An individual, institution, agency, or organization required to report
under this section who does so in good faith is not subject to civil damages
or criminal prosecution for reporting.
(h) The Executive Director shall initially review every report made to the
Board under this subchapter. The Executive Director may defer the
investigation of a report pending a reported licensee's evaluation and
treatment for substance abuse or for physical or mental illness, provided
sufficient safeguards exist to protect the licensee's patients and the public.
Safeguards may include a verifiable, voluntary cessation of the practice of
medicine or a limited or monitored practice. Upon completion of the reported
licensee's evaluation and treatment, the Executive Director may resume
investigation of the report pursuant to the requirements of this chapter. If
the Executive Director determines that a deferral is warranted, the case shall
be summarized and placed before the Board for its information.
The Board may enter into agreements with others to facilitate its duties under
this chapter, provided that no expense may be incurred without the approval
of the Director of the Division of Professional Regulation.
(i) A person who violates a provision of this section is subject to a fine of
not less than $250 nor more than $5,000.
(67 Del. Laws, c. 159, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102,
§ 15; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 358, § 2.)
§ 1731B. Counseling; letter of concern.
(a) If the Executive Director and the President of the Board, or a member of
the Board designated by the President to assist in an investigation concerning
a person certified to practice medicine, determine after the investigation
that a violation of this chapter or of regulations enacted pursuant to this
chapter which warrants formal disciplinary action has not occurred, but that
an act or omission of the person is a matter of concern and that the person's
practice may be improved if the person is made aware of the concern, the
Executive Director, with the concurrence of the President or the assisting
Board member, may issue a non-disciplinary, confidential letter of concern
regarding the person's act or omission.
(b) If a person certified to practice medicine receives a total of 3 letters
of concern and/or letters of counseling pursuant to this section, the
Executive Director may reasonably require a formal assessment of professional
competency pursuant to § 1732(e) of this title to assess the person's
continued ability to protect the health and safety of the person's present or
prospective patients.
(70 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141,
§ 1; 75 Del. Laws, c. 358, § 3.)
§ 1732. Investigations of complaints by the Executive Director.
(a) The Executive Director shall:
(1) Investigate by complaint, or by the Executive Director's own motion or by
the Board's own motion, reported cases of:
a. Unprofessional conduct or inability to practice medicine with reasonable
skill or safety to patients as defined by § 1731(b) and (c) of this title;
b. The unauthorized practice of medicine; and
c. Medical malpractice;
(2) Formulate charges, if circumstances under paragraph (1) of this subsection
warrant, by bringing a formal complaint against a person to whom a
certificate to practice medicine or otherwise licensed or registered in this
State has been issued;
(3) Present all formal complaints to the Board in accordance with the
procedures set forth in this subchapter.
(b) The Executive Director shall appoint 2 unbiased members of the Board, at
least one of whom must be a physician, to assist the Executive Director in
investigations concerning charges of unprofessional conduct or medical
malpractice. The Director of the Division of Professional Regulation shall
appoint investigators from the Division to participate in those
investigations, which must stay within the bounds of the charge being
investigated unless the Executive Director determines that the investigation
itself provides good cause for additional investigation. The Executive
Director decides in a timely manner whether a formal complaint should be
issued. The Executive Director asks the Attorney General's office to prepare a
formal complaint against the person investigated.
(c) The Executive Director shall appoint at least 1 unbiased physician member
of the Board to assist the Executive Director in investigations concerning
inability to practice medicine with reasonable skill or safety to patients.
The Director of the Division of Professional Regulation shall appoint
investigators from the Division to participate in those investigations, which
must stay within the bounds of the charge being investigated unless the
Executive Director determines that the investigation itself provides good
cause for additional investigation. The Executive Director, or the Executive
Director's designee, shall conduct an assessment of the investigation to
determine whether the person to whom a certificate to practice medicine has
been issued is able to practice medicine with reasonable skill and safety to
patients, either on a restricted or unrestricted basis. If the Executive
Director reasonably believes that a diagnostic mental or physical examination
of the person under investigation is necessary, the Executive Director shall
order the person to submit to an examination at the person's expense to be
conducted by a physician designated by the Executive Director. Every person to
whom a certificate to practice medicine has been issued is deemed to have
given that person's own consent to submit to a diagnostic mental or physical
examination when so directed by the Executive Director, and to have waived all
objections to the admissibility of the examination report to the Board. A
person who submits to a diagnostic mental or physical examination as ordered
by the Executive Director has the right to designate another physician to be
present at the examination and to submit an independent report on the
examination to the Board.
(d) To assist in an investigation of alleged unprofessional conduct, or
medical malpractice, or of inability to practice medicine with reasonable
skill or safety to patients, the Executive Director, on behalf of the Board,
may, by subpoena, compel the production of necessary patient medical records
of and patient medical records reviewed by all hospitals, organizations, and
healthcare institutions located in the State and by all quality assurance,
peer review, and other similar committees, including the records of the
Medical Society of Delaware and its committees. A subpoena issued under this
subsection is subject to the subpoena restrictions in § 1731A(d) of this
title. The Board shall take reasonable steps to protect the identity of the
patient in so far as such protection does not, in the opinion of the Board,
adversely affect the Board's ability to protect the public interest.
(e) In addition to or in lieu of a diagnostic evaluation, the Executive
Director may require an applicant for or the holder of a certificate to
practice medicine, at the applicant or certificate holder's expense, to
complete a formal assessment of professional competency if the Executive
Director, after consultation with the President of the Board and at least 1
other physician member of the Board, determines that a formal assessment is
warranted to protect the health and safety of present or prospective patients.
A formal assessment must be performed by the assessment center established by
the Federation of State Medical Boards and the National Board of Medical
Examiners, or by another assessment center as the Executive Director directs.
A formal assessment may not be required of an applicant or certificate holder
by the Executive Director without the written concurrence of the President of
the Board and at least one other physician member of the Board that the
assessment is warranted pursuant to this subsection.
(60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 327, § 2; 67 Del. Laws, c. 226,
§ 12; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 16-19; 75 Del. Laws,
c. 141, § 1.)
§ 1733. Complaints; notice of hearing.
(a)(1) Any member of the public or of the Board, or the Executive Director may
file with the Board a complaint concerning any aspect of the practice of
medicine against a person to whom a certificate to practice medicine in this
State has been issued.
(2) The Executive Director shall acknowledge to the complainant in writing
receipt of the complaint within 1 week of receiving the complaint, and shall
advise the complainant of the progress of the case at least every 90 days
until the case is resolved.
(3) The Executive Director shall communicate with the Department of Justice,
at least monthly, regarding the status of complaints filed pursuant to
paragraph (1) of this subsection that are in the Department of Justice, and
shall report the case status to the Board.
(b) The Executive Director shall investigate in accord with the procedures set
forth in § 1732 of this title each complaint which appears to be valid and
well-founded.
(c) A complaint against a person to whom a certificate to practice medicine
has been issued must be in writing, and signed by the complaining party. The
complaint must set forth with particularity the essential facts constituting
the alleged unprofessional conduct, medical negligence, or inability to
practice medicine with reasonable skill or safety to patients. The Executive
Director in the Executive Director's own discretion may maintain the
confidentiality of the complaining party from the Board. In the absence of an
Executive Director or acting Executive Director, the Secretary of State may
exercise that discretion. The Executive Director may also investigate an
unwritten complaint at the Executive Director's own discretion, provided the
complaining party is identified.
(d) After investigation, if the Executive Director elects to file a formal
written complaint against a person to whom a certificate to practice medicine
has been issued, the person must be served personally or by certified mail,
return receipt requested, with a copy of the complaint not less than 20 days
nor more than 60 days prior to a hearing on the complaint. A formal written
complaint under this subsection must describe in detail the allegations upon
which the complaint is based.
(e) A notice of hearing must inform the person of the date, time, and place of
the hearing; state the statute or regulation allegedly violated and the
statutory or regulatory authority which gives the Board authority to act;
state that the person has a right to be represented by counsel at the hearing
and to present evidence on the person's own behalf; and inform the person that
the Board must base its decision solely upon evidence received at the
hearing. The person is entitled to file with the Board a written response to
the complaint within 20 days of service or of receipt by certified mail of the
complaint.
(f) A complaint of the unauthorized practice of medicine must be reported
immediately to the Attorney General. A person who files a complaint with or
provides information to the Board concerning the unauthorized practice of
medicine is not liable in any cause of action arising out of the filing of the
complaint or the providing of information, provided that the person does so
in good faith and without gross or wanton negligence.
(g) The Office of the Attorney General shall provide legal services to the
Board, its committees, and the Executive Director.
(60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 327, § 3; 67 Del. Laws, c. 226,
§ 13; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 20; 75 Del. Laws, c.
88, § 17(2); 75 Del. Laws, c. 141, § 1.)
(a) Procedure. --
(1) Upon the mailing of a formal complaint by the Executive Director pursuant
to this chapter, the Executive Director shall appoint a hearing panel composed
of 3 unbiased members of the Board, the 3 members being 2 physician members
and 1 public member if practical, who shall hear the evidence concerning
alleged charges of unprofessional conduct or inability to practice medicine
with reasonable skill or safety to patients. The hearing panel shall convene
in executive session to hear the evidence no more than 90 days after the Board
accepts a formal complaint unless the hearing panel, in its discretion,
grants a continuance of the hearing date. All evidence at the hearing must be
taken under oath or affirmation, but technical rules of evidence do not apply.
After the evidence has been heard by the hearing panel, the panel shall make
written findings of fact, conclusions of law, and a recommendation for a
proper disciplinary action, if 1 is warranted. Only evidence presented at the
hearing may be considered by the hearing panel in reaching its findings of
fact and conclusions of law. The findings of fact made by the hearing panel
are binding on the parties appearing before it and on the Board. If the
hearing panel finds that the allegations made in the complaint are not
supported by the evidence, it shall so indicate to the Board, together with
its recommendation that no further action be taken and that the person
complained about be exonerated of all charges. If a majority of the members of
the Board who consider the matter, excluding members who participated in the
investigation of the complaint and members on the hearing panel and members
who are otherwise biased, vote to accept the hearing panel's conclusions of
law and recommendation, no further proceedings may be held before the Board.
However, if a majority of the members of the Board who consider the matter,
excluding any members who participated in the investigation of the complaint
and members on the hearing panel and members who are otherwise biased, vote to
reject the hearing panel's conclusions of law and recommendation, a formal
hearing must be held before the Board to enable the Board to make its own
conclusions of law and determine what discipline, if any, should be imposed.
In such a case, the hearing panel's findings of fact are binding upon the
Board.
(2) If the hearing panel finds that any of the factual allegations made in the
complaint are supported by the evidence it has considered, the Board,
excluding members who participated in the investigation of the complaint and
members on the hearing panel and members who are otherwise biased, will
consider the findings of fact and conclusions of law made by the hearing panel
at a formal hearing.
(3) A formal hearing must be held within 90 days after the issuance of the
written findings of facts and conclusions of law of the hearing panel pursuant
to this subsection; provided, however, that if the hearing panel finds that
the person complained about presents a clear and imminent danger to the public
health by that person's continued practice of medicine, then the full Board
may meet for the formal hearing as soon as possible, but only upon 3 days'
written notice of the formal hearing being provided to the person or to that
person's attorney. No less than 7 affirmative votes are necessary in order for
disciplinary action to be taken by the Board. Upon reaching its conclusions
of law and determining the appropriate disciplinary action, if any, the Board
shall issue a written decision and order in accordance with § 10128 of Title
29. The decision and order must be signed by the Board's President, or, if the
President is not available, by another officer of the Board.
(b) Open hearings. -- A hearing on a complaint conducted by a hearing panel is
open to the public only at the request of the person complained about. A
formal hearing on a complaint before the Board is open to the public in
accordance with the provisions of § 10004 of Title 29.
(c) Transcript of proceedings. -- A stenographic transcript must be made of
the formal hearings of the Board and of the hearings of the Board's hearing
panels. The person complained about is entitled, upon that person's own
request, to obtain a copy of the transcript at the person's own expense.
(d) Rights of respondent. -- The person complained about is entitled to be
represented by counsel before a hearing panel and before the Board. The person
complained about also has the right to cross-examine witnesses against the
person, the right to present that person's own witnesses, and the right to
introduce evidence at the hearing panel hearing. In addition, the person
complained about has the right to compel the issuance of a subpoena for the
attendance of witnesses to appear and testify or for the production of books,
records, or other documents at the hearing panel hearing.
(e) Conduct of hearing before the hearing panel. -- An attorney from the
Office of the Attorney General shall present evidence in support of the
allegations contained in the formal complaint. The attorney may call witnesses
and cross-examine any witnesses called on behalf of the person complained
about. A member of the Board who participated in the investigation of the
complaint under consideration or a member who is biased may not sit on the
hearing panel or take part in the deliberations or decisions of the hearing
panel. To find that a fact or allegation is supported by evidence, the panel
members must unanimously agree. The hearing panel shall make its findings of
fact and conclusions of law based solely upon the evidence presented to it at
the hearing.
(f) Conduct of formal hearing before the Board. -- The findings of fact made
by a hearing panel on a complaint are binding upon the Board at a formal
hearing on the same complaint. At a formal hearing, the Board may not consider
additional evidence. The Board shall deliberate and reach its own conclusions
of law based upon the findings of fact made by the hearing panel. The Board
shall consider the hearing panel's conclusions of law, but is not bound by
them. To adopt conclusions of law, 7 Board members must vote in favor of them.
After adopting its conclusions of law, the Board shall determine what
disciplinary action, if any, against the person complained about is
appropriate, based solely upon the record before it. To impose disciplinary
action, affirmative votes by the majority of the Board members who considered
the matter, but in every case no less than 7 affirmative votes are necessary.
The Executive Director, Board members who participated in the investigation of
the complaint under consideration, the members of the hearing panel, and any
Board members who are otherwise biased may not participate in the
deliberations of the Board concerning a complaint investigated by the
Executive Director.
(g) Written decision and order. -- Upon reaching its conclusion of law and
determining the appropriate disciplinary action, if any, the Board shall issue
a written decision and order in accordance with § 10128 of Title 29. The
order must restate the factual findings of the hearing panel, but need not
summarize the evidence presented. However, notwithstanding the provisions of §
10128(c) of Title 29, the decision and order may be issued over the signature
of only the President or other officer of the Board. The decision and order
must be sent by certified mail, return receipt requested, to the person
complained about, with a copy to the Executive Director.
(h) Upon receiving a decision and order pursuant to subsection (g) of this
section, the Executive Director shall file the required disciplinary action
reports to data banks.
(60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 7; 64 Del. Laws, c. 327, §
4; 64 Del. Laws, c. 477, § 6; 65 Del. Laws, c. 66, § 1; 67 Del. Laws, c. 226,
§ 14; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 21; 75 Del. Laws, c.
141, § 1.)
§ 1735. Revocation or suspension of certificate.
(a) If the Board determines pursuant to this subchapter that a fine and/or the
restriction, suspension, or revocation of a certificate to practice medicine
and/or any other disciplinary action or other action is warranted, an order
describing the Board's action must be served personally or sent by certified
mail, return receipt requested, to the certificate holder. In addition, copies
of the order must be filed in the office of the Board, in the Division of
Professional Regulation, in the Division of Public Health of the Department of
Health and Social Services, and with the Director of Revenue. Upon receipt of
an order of the Board revoking or suspending a certificate to practice
medicine, the Director of Revenue shall forthwith revoke or suspend the
occupational license to practice medicine issued by the Director and comply
with any terms of the order applicable to the Division of Revenue.
(b) The Director of Revenue may not issue an occupational license or a license
renewal to any person whose certificate to practice medicine has been revoked
or suspended by the Board, unless issuance is in conformity with the terms
and conditions of the order of revocation or suspension, or in conformity with
any order of reinstatement issued by the Board, or in accordance with a final
judgment in any proceeding for review instituted under this chapter.
(60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 6; 67 Del. Laws, c. 226, §
15; 71 Del. Laws, c. 102, §§ 22, 23; 75 Del. Laws, c. 141, § 1.)
(a) A person against whom a decision of the Board has been rendered may appeal
the decision to the Superior Court in the county in which the offense
occurred.
(b) An appeal pursuant to this section must be filed within 30 days after the
day the written decision and order of the Board is issued.
(c) An appeal pursuant to this section is on the record of the Board hearing,
without a trial de novo.
(d) A Board action revoking, suspending, or otherwise restricting a person's
certificate to practice medicine is not stayed upon appeal unless so ordered
by the Superior Court.
(e) A person whose certificate to practice medicine has been suspended or
otherwise restricted may, after the expiration of 90 days from the decision of
the Superior Court, or of the Supreme Court if the decision of the Superior
Court is appealed, or after 90 days from the decision and order of the Board
if no appeal is taken, apply to the Board to have the certificate reinstated
or reissued for good cause shown.
(60 Del. Laws, c. 462, § 1; 67 Del. Laws, c. 226, § 16; 70 Del. Laws, c. 186,
§ 1; 75 Del. Laws, c. 141, § 1.)
§ 1737. Confidentiality of records.
Release of records of the Board is governed by the provisions of the Freedom
of Information Act, Chapter 100 of Title 29.
(60 Del. Laws, c. 462, § 1; 67 Del. Laws, c. 226, § 17; 75 Del. Laws, c. 141,
§ 1738. Temporary suspension pending hearing.
(a) If the Board receives a formal or informal complaint concerning the
activity of a person certified to practice medicine and the Board members
reasonably believe that the activity presents a clear and immediate danger to
the public health, the Board may issue an order temporarily suspending the
person's certificate to practice medicine pending a hearing. An order
temporarily suspending a certificate to practice medicine may not be issued by
the Board unless the person or the person's attorney received at least 24
hours' written or oral notice prior to the temporary suspension so that the
person or the person's attorney can be heard in opposition to the proposed
suspension, and unless at least 7 members of the Board vote in favor of the
temporary suspension. An order of temporary suspension pending a hearing may
remain in effect for no longer than 60 days from the date of the issuance of
the order unless the temporarily suspended person requests a continuance of
the hearing date. If the person requests a continuance, the order of temporary
suspension remains in effect until the hearing panel convenes and a decision
is rendered.
(b) A person whose certificate to practice medicine has been temporarily
suspended pursuant to this section must be notified of the temporary
suspension immediately and in writing. Notification consists of a copy of the
complaint and the order of temporary suspension pending a hearing personally
served upon the person or sent by certified mail, return receipt requested, to
the person's last known address.
(c) A person whose certificate to practice medicine has been temporarily
suspended pursuant to this section may request an expedited hearing. The Board
shall schedule the hearing on an expedited basis, provided that the Board
receives the request within 5 calendar days from the date on which the person
received notification of the decision of the Board to temporarily suspend the
person's certificate to practice medicine.
(d) As soon as possible after the issuance of an order temporarily suspending
a person's certificate to practice medicine pending a hearing, the Board shall
appoint a 3-member hearing panel consisting of 2 physician members and 1
public member of the Board if practicable. After notice to the person pursuant
to subsection (b) of this section, the hearing panel shall convene within 60
days of the date of the issuance of the order of temporary suspension to
consider the evidence regarding the matters alleged in the complaint. If the
person requests in a timely manner an expedited hearing, the hearing panel
shall convene within 15 days of the receipt of the request by the Board. The
3-member panel shall proceed to a hearing in accordance with the procedures
set forth in § 1734 of this title and shall render a decision within 30 days
of the hearing.
(e) In addition to making findings of fact, the hearing panel shall also
determine whether the facts found by it constitute a clear and immediate
danger to public health. If the hearing panel determines that the facts found
constitute a clear and immediate danger to public health, the order of
temporary suspension must remain in effect until the Board, pursuant to §
1734(f) of this title, deliberates and reaches conclusions of law based upon
the findings of fact made by the hearing panel. An order of temporary
suspension may not remain in effect for longer than 60 days from the date of
the decision rendered by the hearing panel unless the suspended person
requests an extension of the order pending a final decision of the Board. Upon
the final decision of the Board, an order of temporary suspension is vacated
as a matter of law and is replaced by the disciplinary action, if any, ordered
by the Board.
(66 Del. Laws, c. 2, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §
24; 75 Del. Laws, c. 141, § 1.)
§ 1739. Protection from liability.
Pursuant to the State Early Opt-in provision of 42 U.S.C. § 11111(c)(2), the
protection from liability set forth in 42 U.S.C. § 11111(a) applies to
professional review actions, as defined in 42 U.S.C. § 11151, commenced on or
after Sept. 10, 1988.
(66 Del. Laws, c. 357, § 1; 75 Del. Laws, c. 141, § 1.)
NOTICE: The Delaware Code appearing on this site was prepared by the Division of Research of Legislative Council of the General Assembly with the assistance of the Government Information Center, under the supervision of the Delaware Code Revisors and the editorial staff of LexisNexis, includes all acts up to and including 76 Del. Laws, c. 421, effective August 21, 2008.
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